A Christian or a laic Europe? Moving beyond a false dichotomy.

AuthorUngureanu, Camil

Abstract:

In order to assess the debate concerning the constitutional recognition of Christianity in Europe, we need to pose the more general question of the role (if any) of the symbolic function of the modern democratic constitution in relation to religion. In the present paper, we differentiate between three stylized understandings of constitution-making, namely communitarian, liberal and discursive. Our argument is that the discursive "model" of the symbolic function of the constitution combines the merits and avoids the demerits of communitarianism and liberalism.

Keywords: European constitutionalism, democracy, religion, Habermas, Rawls, communitarianism.

Introduction

The failure of the "Treaty establishing a Constitution for Europe" has given a fresh impetus to the advocates of introducing a reference to Christianity in the Preamble of the future European Constitution: Angela Merkel's renewed plea is a prime example of this positioning. (1) According to it, a stronger anchorage into the Christian dimension of the European identity would not merely reflect the realities of the European historical and legal-constitutional traditions, but it would also offset the lack of solidarity and concrete motivation for furthering the European political project. The fiasco of the Constitutional Treaty is yet another confirmation that a European polity founded on private economic interest or on abstractions such as procedural democracy and constitutional patriotism is unworkable. Thus, the spiritless European political body would need a transfusion of religious blood: the constitutional recognition of Christianity is, as the argument goes, a necessary step in this direction.

In order to clarify the issue of the desirability of introducing a reference to Christianity in the European Constitution, we need to tackle the general question of the function and purpose of a constitution in modern democracies. A modern democratic constitution fulfils normally a plurality of functions out of which three are almost always present. The first is the organization of the state powers and the repartition of institutional competencies. The second is defining and specifying the relations between individuals and the public authority. This includes catalogues of individual rights but also of duties and responsibilities--for instance the contribution to military defence and other public expenses. Third, a constitution can have a symbolic function in that it is also "a kind of deposit that reflects and fosters values, ideals and symbols shared by a particular society." (2) While the first two functions are in principle accepted by the main currents of contemporary political-legal thought, the third symbolic one is subject of deep controversy. The debate concerning the recognition of Christianity by the European Constitution is about how to conceive its symbolic function: in the first place, is it desirable? If so, should it include references to secular values or also to Christian religious values? Then, what could be the legal, political and symbolic consequences of making a reference to Christianity in the European Constitution?

In this paper, we advance the distinction between three stylised conceptions of constitution-making (communitarian, liberal and discursive) and analyze what they entail for the question of the constitutional recognition of Christianity in Europe. First, communitarianism regards the communal identity and the values of community as foundational for the constitutional project: a constitution is supposed to reflect a pre-political identity and a set of communal goods. (3) This stance has been recently adapted and applied to Europe by J. Weiler in his Un'Europa Cristiana. According to this view, the European Constitution should emerge out of the European identity and, therefore, mirror the Christian dimension of this identity. Weiler interprets the constitutional recognition of Christianity as having at least three positive consequences:--it can enhance a fruitful interaction between the Christian (and, more generally, religious) discourse and democratic discourse;--it entails that the Christian discourse can have a direct impact on the legal decision-making;--it would have not only integrative effects for the European Christians, but also for other religious persons in virtue of the implicit recognition of the general salience of religion for people's life (Section I).

Second, we broadly delineate the liberal conception of constitutionmaking relying on the influential view of John Rawls. (4) Despite their differences, political liberalism and laicism conceive the relation between democratic and religious discourse as a zero-sum game and are generally unfavourable to making ethical-religious references in the constitutions (Section II). Third, we outline and defend a discursive conception of constitution-making which, in our view, combines the merits and shuns the demerits of the previous ones. Consonant with the liberal view, the discursive "model" argues that the notion of a direct impact of the religious discourse on legal-political decision-making is democratically illegitimate. However, in agreement with the communitarian conception, religion is not regarded as a "conversation-stopper" (Rorty), (5) but as potentially providing semantic and motivational resources for democratic discourse and practice under certain conditions. Since a historically embedded constitution is not necessarily a strict legal document, it could in principle fit in a symbolic function as long as this does not have discriminatory effects. Nonetheless, given the current European situation, the constitutional recognition of the "Christian roots" is not recommendable: the unilateral reference to Christianity could have discriminatory effects that weaken the conditions of the realization of inclusive discursive practices. While our answer to the specific issue of the constitutional recognition of Christianity coincides formally to the laicist one, it is crucial to emphasize that the discursive stance should be seen as being far away from a self-congratulatory laicism that denies the relevance of Christianity for the European history and the possible salience of the public manifestation of religion. The discursive perspective has different broader consequences for conceiving the European "model" of interaction between religion and democracy in a way that departs from the dichotomy of laic Europe/Europe with a Christian soul. (6)

I.

In the following comparative analysis of the three stylized models of constitution-making, we examine: (a) their understanding of the constitution and of its role in a democratic society; (b) their views on the salience (if any) and content of the symbolic function of the constitution in relation to religion (c) what they entail for the debate on the constitutional recognition of Christianity in Europe.

(a) Communitarianism grants a foundational importance to the communal identity and values of the historical community.7 Being built on an active and deep agreement about the good, a democratic regime is understood as a "lived constitutive community" (Sandel). According to Taylor's :

"[t]he condition for a successful [democratic] participatory model is a strong identification with the fate of the community. [...] This identification can perhaps best be described in this way: it exists where the common form of life is seen as a supremely important good, so this continuance and flourishing matters to the citizens for its own sake and not just instrumentally to their several individual goods. The common life has a status of this kind when it is a crucial element in the members identity, in the modern, Eriksonian sense of the term; hence my use of "identification." Unless there is a common sense of a determinate community whose members sense a bond between them from this common allegiance, an identification with the common good cannot arise." (8) An important corollary is that the constitution should not be seen as comprised of a set of abstract principles concocted overnight, but as organically emerging from a pre-existing collective identity. This does not amount to denying pluralism and espousing the notion of a pre-established harmony in a complete sense--a harmony that is to be simply mirrored by the "communitarian constitution." There is a variety of social roles and ideals of life and there is still disagreement and debate, constitutional or not. The communitarian's point is just that disagreement takes place between discursive collective interpretations of shared values which should and can be resolved by "digging deeper" into what community's identity really is and ought to be. (9) Engaging in discursive practices entails a search for the deepest commitments of the community (and, simultaneously, of the individuals), so that a justifiable answer can be presented as the most adequate expression of the common ethical character. Ideally speaking, the achievement of a "common mind" (Taylor)10 should be reflected in the constitution.

This short analysis is not meant to imply that communitarianism rejects individual rights. True, in After Virtue, MacIntyre espoused the Aristotelian ideal of the intimate, reciprocating local community bound by shared ends, where people merely take on and fulfill socially atributed roles and fulfill socially given roles. (11) And in the Spheres of Justice, Michael Walzer pointed to the Indian caste system "where the social meanings are integrated and hierarchical," (12) as an example of a non-liberal society that is just according to its internal criteria. However, the communitarian early musings about alternative societies to the constitutional-democratic ones have proved just as unconvincing as MacIntyre's idea that human rights and unicorns are equally figments of imagination. The pre-modern Gemeinschaft conception of an all-encompassing community that members...

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